Illustration: Lazaro Gamio/Axios

The Affordable Care Act’s fate will still be up for grabs in the courts well after the 2020 election, thanks to a decision last night from a panel of the 5th Circuit Court of Appeals.

Driving the news: In a 2-1 ruling, the panel said the ACA’s individual mandate is unconstitutional. But the court declined to say how much of the rest of the law should fall along with it, instead punting that question back to a lower court to reconsider.

The backstory: Judge Reed O’Connor ruled last year that the individual mandate became unconstitutional in 2017, after Congress zeroed out the penalty for being uninsured.

  • He said the entire ACA was bound up with the mandate, and thus the whole law was unconstitutional.
  • Democrats appealed that decision to the 5th Circuit.

After attending the 5th Circuit’s oral arguments in this case over the summer, my sense was that the panel’s two conservative judges very much wanted to rule against the ACA, and that the mandate was probably doomed — but that they were spooked by the full implications of striking down the entire law.

  • That comports pretty well with that they decided last night.
  • The court said O’Connor’s ruling “does not explain with precision” why certain provisions of the ACA couldn’t survive, and instructed him “to employ a finer-toothed comb … and conduct a more searching inquiry.”

Between the lines: In throwing out the entire ACA, O’Connor relied heavily on the way Congress described the mandate in 2010, when it was described as “essential” to many other reforms.

  • But he largely ignored the fact that, in 2017, Congress severed the mandate from the rest of the law. That should be a pretty clear sign that Congress considers it to be severable, the ACA’s allies argue. And the 5th Circuit agreed that O’Connor had given too little weight to more recent history.

The big picture: This case is basically right back where it started. You can assume the mandate is a goner. The real question is about the rest of the law. And it’s working its way toward the Supreme Court.

  • Last night’s ruling simply bought a little extra time, keeping it off the high court’s docket in the middle of an election year.

What’s next: The same three outcomes are on the table: O’Connor could rule that, actually, on second thought, the mandate can fall by itself. Because it’s already not in effect, that wouldn’t have a huge practical impact.

  • Or he could strike down the mandate plus the law’s protections for pre-existing conditions, or come back and strike down the whole thing again.
  • Either of those rulings would reignite a national political firestorm as well as appeals that would likely end at the Supreme Court, sometime in 2021.

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